Court to Hear Arguments on Right to Anonymous Speech in Prop. 35 Case

The Ninth Circuit Court of Appeals in San Francisco will hear oral arguments Tuesday in Doe v. Harris, EFF's challenge to California's Proposition 35, which requires registered sex offenders to turn over all of their Internet identifiers and service providers to local law enforcement authorities.

In November 2012, California passed Prop. 35 through ballot initiative. The day after the election, we brought a lawsuit with the ACLU of Northern California, challenging parts of the initiative as violating the First Amendment. The court granted a temporary restraining order later that day and, in January 2013, granted a preliminary injunction blocking enforcement of the law after finding we'd shown a substantial likelihood that the challenged portions of Prop. 35 were unconstitutional.

The court found that requiring registrants to disclose their online identifiers and service providers to law enforcement would likely chill the free speech right of a registrant to speak anonymously. The court noted that although Prop. 35 was passed ostensibly to combat human trafficking, these reporting requirements didn't have a sufficient nexus to a criminal investigation and applied to more speakers and more speech than necessary to combat human trafficking.

Both the state and the sponsors of the initiative appealed the court's ruling. At Tuesday's hearing, ACLU of Northern California attorney Michael Risher will be arguing that the court got the analysis right and the preliminary injunction should remain in place. Like the court wrote, registrants “enjoy no lesser right to anonymous speech simply because they are ‘unpopular” and a requirement that people have to "report to the government all communications on blogs and websites puts a stake through the heart of the First Amendment."

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